Property Flashcards
If non-conforming use in a fee simple determinable?
Goes back AUTOMATICALLY to the grantor
Possibility of Reverter.
Once there’s nonconforming use, AUTOMATICALLY goes back to the grantor.
Fee Simple Subject to a Condition Subsequent
language
“but if”
“on the condition that”
If non-conforming use in a fee simple subject to a condition subsequent?
Right of Reentry (of grantor)
Still going to go back to the grantor, but doesn’t go back automatically - has to assert the right.
Interests where the Rule Against Perpetuities applies
- Contingent Remainders/Class Gift
- Options to purchase (fee options)
- Powers of Appointment
- Executory Interests
- Rights of First Refusal
CCOPER
Fee Simply Subject to Executory Limitation
language
“then”
Interest will move on to third party.
Ex. A conveys Blackacre to B so long as it is used for church purposes, then to C. B tears down the church there, so it goes to C.
Life estate - interests
Future interest in grantor - reversion
Present possessory interest - life estate
Future interest in third party - remainder
What can you do with a life estate?
Can lease it, mortgage it, create easements, convey an interest.
Life estate per autra vie
Life estate based on the life of another. If life estate is sold to someone, buyer’s interest is only for the duration of the measuring life of the life estate.
When someone with a life estate leases the property to a tenant, and dies before the lease terminates, can the person with the remainder (or reversion) take possession immediately?
YES. Don’t have to wait for the end of the lease.
The person with the life estate had only their interests to lease - once they die, they no longer have an interest. Once person with life estate dies, the property goes IMMEDIATELY to the remainder interest (or the reversion)
Restraint on Alienation
A restriction prohibiting the recipient from selling or otherwise transferring his interest in the property.
Are Restraints on Alienation valid?
No - they’re usually void as against public policy of allowing landowners to freely dispose of their property.
Types of Restraints on Alienation that ARE VALID:
- A prohibition against partition of property for a limited time
- The right of first refusal - A sells property to B, A may require that if B later decides to sell the property, she must first give A the opportunity to buy it back.
Concurrent estates
Joint Tenancy
Tenants by the Entirities
Tenancy in Common
Severance - JT becomes Tenancy in Common
Joint Tenancy
4 unities: TTIP
- time
- title
- interest
- possession
Survivorship - estate passes to the survivor
Tenants by the Entirities
Reserved for husband and wife
5th unity - person
Tenancy in Common
Unity of Possession ONLY
Severance - when JT becomes TIC
- Conveyance Inter Vivos
- Death of one of two remaining JTs
- Mortgage under title theory
- Final partition action
Conveyance Inter Vivos
When one party conveys his property interest during life to another
Way to sever a JT, to become a TIC.
Death of one of the two remaining JTs
If only two, death of the last one severs the joint tenancy
No more co-ownership, bc now just one person who owns the property
Mortgage under title theory
Way to sever a JT, to become a TIC. Mortgaging the interest actually CONVEYS title to the bank, so severs the joint tenancy
Mortgage would not be over the entire property - just the portion that the person who mortgaged owned.
Title theory (mortgage)
minority theory
When a mortgage is taken out - NOT A LIEN - but actually CONVEYS title to the bank. In this situation, it SEVERS the joint tenancy
Lien theory (mortgage)
MAJORITY theory (MBE default)
When a mortgage is taken out, it’s JUST A LIEN and title is NOT transferred to the bank. Does NOT sever the joint tenancy.
Final partition action
Partition - something people apply for, but only granted by the court.
Does a partition action survive someone’s death? Can the estate take it on?
NOPE. The final judgment needs to be rendered before the person’s death.
For a partition proceeding - needs to be a FINAL JUDGMENT, court needs to have granted it.
License
A REVOCABLE personal privilege to enter the servient tenement of the licensor without liability for trespass.
Servient is the one that’s burdened.
Ex. tickets to a game, concert, etc.
Easements
A non-possessory interest in the USE of land of another
Easements in Gross
No dominant tenement
Do NOT run with the land
Easements Appurtenant
2 parcels:
- benefitted - dominant
- burdened - servient
Do NOT run with the land
Creation of easements
- Expressly in writing - grantor to grantee
- Necessity - landlocked, but allow judge to decide
- Implication - reflect practices and customs of property
- Prescription - adversely possessed (no exclusivity)
Termination of an easement
- Written release
- End of necessity
- Abandonment - requires intent and physical act
- Merger - unity of ownership
Covenant
A contract in which the convenantor makes a promise to a convenantee to do or not do some action tied to the use of land.
A covenant running with the land IMPOSES DUTIES or RESTRICTIONS upon the use of that land REGARDLESS OF THE OWNER.
With an Assignment, what do you get?
You get ALL the remaining interests. You get all the previous owner’s interests, and you’re an assignee, and you’re in privity of estate.
Line of privity
Allows a suit to occur
Does a subtenant have privity?
NO - a subtenant is not obligated to the landlord. UNLESS there has been novation.
How is a party other than the original tenant have privity to the lease contract?
NOVATION - a party who was not part of the original contract, and wants in, and an original party wants out. Like how we did lease-takeovers at UClub.
A profit
The ability to come onto the land of another and take something.
Usually associated with: topsoil, water, mining, crops.
The word “take” signals a profit
Constructive Eviction
Premises “uninhabitable”
Tenant MUST move out
Types of Tenancy
Tenancy for years - fixed term
Periodic Tenancy - no ending date
Tenancy at Will - indefinite
Tenancy at Sufferance - holdover tenant
How much notice is required to terminate a month-to-month tenancy?
Need to give a full month’s notice.
If A has paid for September, and is given notice of eviction on Sept 15, will be able to stay until Oct 31 - bc has paid for Sept THEN need another month.
Delivery of Possession - American rule
The MINORITY position in the United States
At the start of the lease, the tenant would only have a cause of action against a holdover tenant, not the LL if the premises are not delivered.
Delivery of Possession - English rule
LL has a duty to deliver possession at the lease inception
Subadjacent and lateral support
Landowner is strictly liable if his excavation causes UNIMPROVED adjacent land to subside
Adverse Possession
Actual and Exclusive (cannot be shared)
Open and Notorious
Adverse and Hostile (cannot be permissive)
ALSO - statutory period.
Physical element (actual and exclusive, open and notorious) and Mental element (adverse and hostile)
Are motives of the adverse possessor relevant?
NOT REALLY. The adverse possession just has to be against the true owner’s interests. If you’re on it without permission, thinking that it’s yours, acting like it’s yours, then the hostile element is going to be met.
For a land deed to be complete does it have to describe a tract of land that is enclosed?
YES. The land has to be enclosed in order for the deed to be definite and sufficient to pass title.
Deeds - valid delivery
- Proper execution
- Intent
In order to have a proper execution of the deed, it needs to be validly delivered.
Equitable Conversion - common law
Majority
Risk of loss for casualty is placed on the BUYER during the executory period.
The BUYER is the equitable owner of the LAND, whereas the SELLER, who holds legal title, is the equitable owner of the RIGHT TO THE FULL PURCHASE PRICE.
Shifts the burden and the benefits to the purchaser.
Executory Period
Time when the home is in escrow, when they’re still checking you out to determine whether you would be a safe bet for a mortgage.
Who bears risk of loss during executory period?
Majority - risk on BUYER - Equitable Conversion (common law)
Minority - risk on the seller. Uniform Vendor and Purchaser’s Risk Act.
Uniform Vendor and Purchaser’s Risk Act
Risk of loss is on the BUYER ONLY if he has LEGAL TITLE or POSSESSION of the property.
Marketable Title
Every contract for the sale of land contains an implied warranty of marketable title
Marketable title - encumbrances
Encumbrances make a title NOT marketable (unmarketable)
- Mortgage
- Lien
- Easement
- Equitable servitude
- Zoning violation (not zoning restrictions)
- Future interest
If the property value increases during the executory period, who gets the money?
The spoils go to the Buyer. Seller only gets the purchase price - Equitable Conversion doctrine.
In a land-sale contract, can a seller earmark a portion of the proceeds in escrow to remove an encumbrance on the property being conveyed?
YUP.
Bona Tide Purchaser (BFP)
- Pays value (purchaser, mortgagee, judgment creditor)
- Takes in “good faith”
AND - Takes without notice of any competing claim (key MBE element)
If someone is gifted Blackacre in a will, they’re NOT BFPs and therefore will lack protection under a recording statute
Types of Recording Statutes
- Race - 1st to record wins
- Notice - last BFP wins
- Race-Notice - 1st BFP to record wins
Look for word “first” in the statute - if not, then it’s gonna be a notice jdx
When does a will speak?
At DEATH. Not when it’s written.
When is a deed effective?
Upon DELIVERY.
Mortgage
An interest in land created in writing providing security for the performance of a duty or the payment of a debt.
Foreclosure
The method by which the security is applied to satisfy the debt.
Deficiency Judgment
Allowed where the proceeds of the foreclosure sale are insufficient to satisfy the debt
Mortgagee - Causes of action
- “In personam” on the debt
2. “In rem” on the security
Rights of a Grantee
A grantee who “assumes” a mortgage is personally liable
A grantee who takes “subject to” the mortgage is NOT personally liable
Subject to the mortgage
Where the deed makes NO reference to the mortgage, it is presumed the grantee takes “subject to” and is not personally liable
Silent, or says “subject to” - not going to be personally liable for the mortgage debt.
Purchase Money Mortgage
A purchase money mortgage takes priority over other prior mortgages, regardless of recording statutes.
The purchase money mortgage itself, however, MUST be recorded
The big winner, as long as it’s been recorded.
Exoneration
The right of a surety to compel the mortgagee to proceed first against the person or property primarily liable
Someone is entitled to exoneration if there’s an assuming grantee that assumed the responsibility of the mortgage, and they’re no longer primarily responsible.
In Personam action
An action against someone foreclosed upon for the difference between the amount of debt that was foreclosed and the value of the property foreclosed (what the bank could get for it)
Deficiency judgment. When the sale proceeds are insufficient to cover the debt
Example: Default on $500k mortgage, bank sold the house for $250k, they can come after you for the rest, an in personam action for the other $250k.
In Rem action
Action against the PROPERTY in a foreclosure to satisfy the debt.
Assuming Grantee
Takes over the mortgage, steps into the shoes of the grantor, becomes PRIMARILY LIABLE for the mortgage debt of another.
People would do this bc they want the property and can’t get a mortgage.
Race-Notice statute
First BFP to record wins
Ex. “No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record”
Under the doctrine of election of remedies, can you sue for BOTH specific performance and damages?
NOOO. May sue for specific performance, OR damages.
When dealing with land - usually go for specific performance (classic contract remedy when land is concerned).
Classic contract remedy when land is concerned
Specific performance
Dedication
a transfer of an interest in land from a private owner to the public generally or to a public agency.
How may dedication be accomplished?
Through deed, but also may be down by acts of the owner that would not constitute a valid deed and would NOT satisfy the Statute of Frauds.
Dedication by acts of the owner that would not constitute a valid deed?
Must be BOTH
1. An offer to dedicate by the owner
AND
2. An acceptance by the public.
What constitutes an offer of dedication?
Offer - words or acts of the owner indicating an intent to turn the property over to the public. Clear oral statement sufficient. If writing - no particular formalities. If you invite the public to use your land for a long period, you may be held to have impliedly made an offer of dedication.
What constitutes an acceptance of dedication?
Acceptance NOT presumed - need affirmative proof of acceptance.
What will suffice: formal acceptance by the public body, taking over maintenance or construction of improvements, cessation of property taxation, or any other act indicative of gov control.
5 Covenants of Title in a General Warranty Deed
- Covenant of seisin
- Covenant of right to convey
- Covenant against encumbrances
- Covenant of quiet enjoyment
- Covenant of further assurances
First 3 - “present” covenants, and are violated (if at all) at the moment the grantor delivers the deed to the grantee.
Remedy for beach of covenants of title?
Recovery of damages
Does the Rule Against Perpetuities apply to partition actions?
NOPE.
